690 F.3d 639 (5th Cir. 2012), 11-40507, Kenemore v. Roy

Docket Nº:11-40507.
Citation:690 F.3d 639
Opinion Judge:JERRY E. SMITH, Circuit Judge:
Party Name:Lawrence D. KENEMORE, Jr., Petitioner-Appellant, v. Warden Keith ROY, Respondent-Appellee.
Attorney:Lawrence Derwood Kenemore, Jr., Terre Haute, IN, pro se.
Judge Panel:Before REAVLEY, SMITH and CLEMENT, Circuit Judges.
Case Date:August 09, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 639

690 F.3d 639 (5th Cir. 2012)

Lawrence D. KENEMORE, Jr., Petitioner-Appellant,

v.

Warden Keith ROY, Respondent-Appellee.

No. 11-40507.

United States Court of Appeals, Fifth Circuit.

August 9, 2012

Page 640

Lawrence Derwood Kenemore, Jr., Terre Haute, IN, pro se.

Appeal from the United States District Court for the Eastern District of Texas.

Before REAVLEY, SMITH and CLEMENT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Lawrence Kenemore moves this court to vacate, set aside, or correct his sentence under 28 U.S.C. § 2241 after he lost at trial and on a previous habeas corpus petition. His new petition argues that the Supreme Court's GVR1 in Jackson v. United States, 555 U.S. 1163, 129 S.Ct. 1307, 173 L.Ed.2d 575 (2009) (mem.), constitutes a retroactively applicable decision demonstrating he was convicted of a non-offense. Because the GVR does not qualify as a retroactively applicable Supreme Court decision, we affirm.

I.

Kenemore was convicted of conspiracy to commit mail fraud, conspiracy to embezzle funds from employee benefit plans, conspiracy to launder money, mail fraud, embezzlement from employee benefit plans, money laundering, and making a false statement to the Department of Labor. After losing on appeal, he petitioned for habeas relief and was denied. He now files a new motion to vacate, set aside, or correct the sentence under § 2241.

In Jackson, the GVR included a remand for reconsideration without addressing the merits. The GVR was issued after the Solicitor General had filed a brief claiming that Jackson's conviction was in error, because the statutory interpretation of the term " assets" advocated by the government in the Fourth Circuit was incorrect. Kenemore argues that he was convicted using a similar definition of " assets" and that that definition is invalid after Jackson.

II.

Kenemore claims that the savings clause of 28 U.S.C. § 22552 authorizes relief in his case through a petition filed under § 2241. Normally, a motion under § 2255 would be the proper vehicle for Kenemore to use when challenging his conviction. Cox v. Warden, 911 F.2d 1111, 1113 (5th Cir.1990).3 A prisoner may use § 2241 when § 2255 is inadequate or ineffective for testing his detention's legality. 4

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Section 2255 is inadequate for a claim " (i) that is based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense and (ii) that was foreclosed by circuit law at the time when the claim should have been raised in the petitioner's trial, appeal, or first § 2255 motion." Reyes-Requena, 243 F.3d at 904.

Kenemore contends that the GVR in Jackson qualifies as a retroactively applicable Supreme Court decision. A GVR is a Supreme Court practice whereby the Court allows a circuit court to reconsider its opinion, often after a change in the law or factual circumstances occurs that might lead to a different result:

Where intervening developments, or recent developments that we have reason to believe the court below did not fully consider, reveal a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration, and where it appears that such a redetermination may determine the ultimate outcome of the litigation, a GVR order is ... potentially appropriate.

Lawrence ex rel. Lawrence v. Chater, 516 U.S. 163, 167, 116 S.Ct. 604, 133 L.Ed.2d 545 (1996).

In Jackson, the defendant was convicted of theft from an employee-benefit plan. Affirming on appeal, the Fourth Circuit held that " assets" of the plan included amounts due and owing to the plan even if they were not yet paid. The...

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